PRINDIVILLE v Hoffman

[2005] WASC 258

PRINDIVILLE -v- HOFFMAN [2005] WASC 258

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 258
Case No:	SJA:1063/2005	Heard:	8 NOVEMBER 2005
Coram:	JENKINS J	Delivered:	25/11/05
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	WAYNE JEFFREY PRINDIVILLE TARYN HOFFMAN
Catchwords:	Criminal law Criminal liability Conviction for offence arising out of the same facts as former conviction Whether appellant had a defence to current charge as a consequence of the former conviction Criminal Code, s 17
Legislation:	Courts Legislation Amendment and Repeal Act 2004 (WA), s 23, s 55 Criminal Appeals Act 2004 (WA), s 8(1) Criminal Code (WA), ch IIA, s 11, s 17, s 378, s 401(2), s 402, s 594 Criminal Procedure (Summary) Act 1902 (WA), s 46 Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA) Criminal Procedure Act 2004 (WA), Sch 1 cl 7(5), Sch 1 cl 11(2), s 126(1), s 132(4) Interpretation Act 1984 (WA), s 18 Justices Act 1902 (WA), s 46 Sentencing Act 1995 (WA), s 11, s 11(1), s 11(4)
Case References:	Grassby v The Queen (1989) 168 CLR 1 O'Halloran v O'Byrne [1974] WAR 45 Pearce v The Queen (1998) 194 CLR 610 R v Carroll (2002) 213 CLR 635 R v O'Loughlin (1971) 1 SASR 219 Scott v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : PRINDIVILLE -v- HOFFMAN [2005] WASC 258 CORAM : JENKINS J HEARD : 8 NOVEMBER 2005 DELIVERED : 25 NOVEMBER 2005 FILE NO/S : SJA 1063 of 2005 BETWEEN : WAYNE JEFFREY PRINDIVILLE

Appellant

AND

TARYN HOFFMAN
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MR P NICHOLLS SM

File No : KA 383 of 2005

Result : Convicted and fined $150

Catchwords:

Criminal law - Criminal liability - Conviction for offence arising out of the same facts as former conviction - Whether appellant had a defence to current charge as a consequence of the former conviction - Criminal Code, s 17

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Legislation:

Courts Legislation Amendment and Repeal Act 2004 (WA), s 23, s 55

Criminal Appeals Act 2004 (WA), s 8(1)
Criminal Code (WA), ch IIA, s 11, s 17, s 378, s 401(2), s 402, s 594
Criminal Procedure (Summary) Act 1902 (WA), s 46
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA)
Criminal Procedure Act 2004 (WA), Sch 1 cl 7(5), Sch 1 cl 11(2), s 126(1), s 132(4)
Interpretation Act 1984 (WA), s 18
Justices Act 1902 (WA), s 46
Sentencing Act 1995 (WA), s 11, s 11(1), s 11(4)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D R Love
Respondent : Ms S M De Maio

Solicitors:

Appellant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Grassby v The Queen (1989) 168 CLR 1
O'Halloran v O'Byrne [1974] WAR 45
Pearce v The Queen (1998) 194 CLR 610
R v Carroll (2002) 213 CLR 635




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Case(s) also cited:

R v O'Loughlin (1971) 1 SASR 219
Scott v The Queen, unreported; CCA SCt of WA; Library No 990004; 15 January 1999


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JENKINS J:

The Decision under Appeal

1 This is an appeal from the decision of a Magistrate sitting in the Magistrates Court at Perth on 25 May 2005. On complaint KA 383/05, being one count of stealing, the Magistrate convicted the appellant and fined him $150.

Grounds of Appeal

2 There is one ground of appeal. It is that the Magistrate erred as a matter of law in his interpretation of the Criminal Code (WA) ("the Criminal Code"), s 17 in not finding that the appellant's earlier conviction for burglary gave rise to a plea in bar.

Details of Charges and Proceedings

3 The appellant was charged on one complaint (now called a prosecution notice) with two offences. The first, the matter under appeal, alleged that on 8 October 2004 at Kewdale the appellant stole a television and a DVD player to the value of $200 the property of Kim Beaumasters contrary to the Criminal Code, s 378 ("the stealing offence"). The second charge, KA 384/05, alleged that on the same date and the same place the appellant entered the dwelling of Kim Beaumasters without the consent of Kim Beaumasters and committed an offence, namely stealing, in circumstances of aggravation namely in company with another person contrary to the Criminal Code, s 401(2) ("the burglary offence").

4 The appellant pleaded guilty before the Magistrate to the burglary offence. He was convicted and sentenced to 7 months' imprisonment. The Court was advised that the appellant wished to make submissions in respect to the application of the Criminal Code, s 17 to the stealing offence. The matter was adjourned to 31 March 2005. On that date both parties made submissions as to whether the Criminal Code, s 17 applied to the stealing offence. The Magistrate reserved his decision. On 25 May 2005 the Magistrate found that s 17 did not apply and gave reasons for that decision. The appellant was then asked to plead to the stealing offence. He pleaded guilty to it and was convicted and fined $150.

5 At the time the Magistrate made his decision a plea had not been taken from the appellant in respect to the stealing offence. However, as in Pearce v The Queen (1998) 194 CLR 610 at 616, this appeal should not turn on "any procedural difficulty that might be said to follow from the course adopted below".

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Factual Background

6 The burglary and stealing offences arose out of the same set of facts. In respect to the burglary offence it was alleged that the appellant was driven to Kim Beaumasters' home by an unidentified male to whom the appellant owed money over a drug debt. The unidentified male waited for the appellant whilst he entered the home by forcing open the laundry window. Once inside the appellant searched the house and from the lounge room he stole a television valued at $100 and a DVD player valued at $100. The appellant then left the home with the items and returned to the waiting vehicle. He left the items with the unidentified male. On 20 January 2005 the appellant handed himself in to the police and made oral admissions that he had entered the home and taken the items to pay off a drug debt. The stealing of the television and DVD player from the home constituted the facts of the stealing offence.

The Law

7 An appeal from a decision of a Magistrate may be allowed if an error of fact and/or law has been made by the Magistrate: Criminal Appeals Act 2004 (WA), s 8(1).

8 The appellant submits that an error of law was made. He says that as the stealing offence arose out of the same facts as the burglary offence and because the prosecution alleged that the offence committed during the burglary offence was the stealing offence the Criminal Code, s 17 provided a defence to the stealing offence. Therefore he should not have been separately convicted of the stealing offence.

9 The respondent submits that stealing was not an alternative charge open upon the charge of burglary and vice versa. Consequently, she says that the Criminal Code, s 17 did not apply. She submits that as the prosecution elected to proceed with the stealing offence, the only provision that applied to alleviate the consequences of convictions for two offences arising out of the same facts was the Sentencing Act 1995 (WA) ("the Sentencing Act"), s 11.

10 The submissions to and the decision of the Magistrate in this matter spanned a period of time in which significant amendments were made to the criminal law and criminal procedure in Western Australia. When the Magistrate heard submissions in respect to this matter in March of 2005 the Justices Act 1902 (WA) ("the Justices Act") was extant and was the primary statute dealing with the procedure on the summary trial of

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offences. There were no statutory provisions in it providing for alternative offences to offences dealt with summarily.

11 By the time the Magistrate delivered his decision on 25 May 2005 the Courts Legislation Amendment and Repeal Act 2004 (WA), s 23 had amended the short title of the Justices Act to the Criminal Procedure (Summary) Act 1902 (WA) ("the Criminal Procedure (Summary) Act"). On 2 May 2005 it was repealed by the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA). On the same date substantial amendments were made to other Western Australian statutes dealing with criminal law and criminal procedure.

12 The Courts Legislation Amendment and Repeal Act 2004 (WA), s 55 came into effect on 1 May 2005 and it provides:

"55. Pending proceedings

If immediately before commencement proceedings are pending before justices or a court of petty sessions, then on commencement the proceedings –

(a) are to be taken to be proceedings before the Magistrates Court; and

(b) shall be heard and determined by the Magistrates Court in accordance with –


(i) if immediately after commencement the proceedings are within the criminal jurisdiction of the court, the law governing the procedure for cases within that jurisdiction;"

13 The proceedings with respect to the charge under appeal were pending before a Court of Petty Sessions prior to the commencement of the Courts Legislation Amendment and Repeal Act 2004 (WA). Pursuant to s 55 they were as of 1 May 2005 taken to be proceedings before the Magistrates Court and were to be heard and determined by the Magistrates Court in accordance with the law governing the procedure for cases within that jurisdiction at that time, rather than as at the time submissions were made to the Magistrate.

14 Relevantly, the two sections of the Criminal Code under which the appellant was charged state:

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"378. Penalty for stealing

Any person who steals anything capable of being stolen is guilty of a crime,

…

401. Burglary


…
(2) A person who commits an offence in the place of another person, when in that place without that other person's consent, is guilty of a crime …"

15 These provisions were not affected by the statutory changes made on 1 or 2 May 2005.

16 The Criminal Code, s 17 states:

"17. Former conviction or acquittal a defence

It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment or prosecution notice on which he might have been convicted of the offence with which he is charged, or has already been convicted or acquitted of an offence of which he might be convicted upon the indictment or prosecution notice on which he is charged."

17 Prior to 2 May 2005 the word "complaint" appeared instead of the term "prosecution notice". Otherwise the section was the same.

18 It is agreed that as of the date this issue was determined by the Magistrate, stealing was not an alternative offence to burglary or vice versa unless they were charged as alternatives. In this case they were not charged as alternatives. That position has not changed despite the insertion on 31 May 2005 of ch IIA into the Criminal Code. Chapter IIA provides for some statutory alternatives for offences dealt with summarily. I also note that as of 2 May 2005 when the Criminal Procedure Act 2004 (WA) ("the Criminal Procedure Act") commenced, Sch 1 cl 7(5) and cl 11(2) of that Act became applicable to a prosecution notice containing counts of burglary and stealing, charged as alternatives. Neither party suggested that those clauses were applicable to this case so I

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will leave their interpretation to another time. I merely observe that the use of the word "charge" in cl 11(2) as opposed to "prosecution notice or indictment", at first glance, is confusing.

19 It is also agreed that the Criminal Code, s 594, (repealed as of 31 May 2005) which allowed for a conviction on any offence established by the evidence to be recorded, did not apply to prosecutions in the Magistrates Court. However, the appellant submits that the Criminal Procedure (Summary) Act, s 46 (repealed) rendered any amended charge on a complaint, an alternative charge to that actually charged. The appellant's counsel submits that s 46 was regularly used by prosecutors to amend charges when it became clear, during the course of a hearing, that the evidence did not support the charge as laid but did support another, usually lesser, charge. Section 46 of the Criminal Procedure (Summary) Act (repealed) stated:

"46. Want of form or variance in warrant, etc.

No objection shall be taken or allowed to any complaint, … for any alleged defect therein, in substance or in form, or for any variance between it and the evidence in support thereof, and any such variance shall be amended by order of a court of summary jurisdiction at the hearing."

20 On 2 May 2005 a similar power to amend charges commenced in the Criminal Procedure Act, s 132(4).

21 Finally, it is relevant to set out the provisions of the Sentencing Act, s 11(1) and (4). That provision states:

"(1) If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.

…

(4) Nothing in this section affects the operation of section 17 of The Criminal Code."

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Application of the Law to the Facts

22 There is no statutory provision other than the Criminal Code, s 17, which would have enabled the Magistrate to dismiss the stealing offence. The appellant does not submit otherwise.

23 The respondent submits that the Magistrate had the power to prevent a conviction being entered in respect to the stealing offence by staying the complaint. Having regard to the dicta in Grassby v The Queen (1989) 168 CLR 1 at 16 – 17 per Dawson J, it is a moot point whether the Magistrates Court had such a power prior to 2 May 2005. However, on that date the Criminal Procedure Act commenced. Section 76 of that Act provides that a court of summary jurisdiction may stay a prosecution if it is satisfied that the charge is an abuse of process of the court. In light of Pearce v The Queen (supra) and R v Carroll (2002) 213 CLR 635, an application for a stay may have been successful if made pursuant to this provision. In any event the appellant's case as put to the Magistrate and to me is that the Criminal Code, s 17 provided him with a defence to the stealing offence. When that issue was decided against him by the Magistrate, he entered a plea of guilty to the charge. He did not apply for a stay of the charge and neither did he enter any other plea that might have been available to him: Criminal Procedure Act, s 126(1). It would not be appropriate for me to consider the position if the appellant had taken some other hypothetical course of action.

24 In my opinion s 17 does not apply to the facts of this case. Relevantly, s 17 provides a defence to a charge of any offence where the accused:

(a) has already been tried and convicted or acquitted upon a prosecution notice on which he might have been convicted of the offence with which he is charged; or

(b) has already been convicted or acquitted of an offence of which he might be convicted upon the prosecution notice on which he is charged.

25 In O'Halloran v O'Byrne [1974] WAR 45, the Full Court considered the meaning of s 17, particularly the first limb of the section. In that case the respondent had been acquitted by a jury on an indictment charging him with rape. At his trial the respondent admitted carnal knowledge. However, the trial Judge had declined to direct the jury that the respondent might be convicted, as an alternative to rape, of unlawful carnal knowledge of a girl under 16 years. After the acquittal the respondent was charged on complaint with unlawful carnal knowledge of

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a girl under the age of 16 years. The respondent entered a plea of autrefois acquit. This plea was upheld and the charge was dismissed. The prosecution appealed from that decision. The Full Court dismissed the appeal on the basis that the respondent might have been convicted on the indictment of the offence of unlawful carnal knowledge, even though that alternative verdict was not left to the jury. The Full Court found that the verdict of acquittal was a general verdict on the first indictment. The accused had been convicted on an indictment for rape on which he might have been convicted of the offence of unlawful carnal knowledge with which he was later charged and thus the defence of former acquittal was good.

26 In respect to the first limb of s 17, in this case the appellant would have had a defence to the charge of stealing if he had already been tried and convicted or acquitted upon a prosecution notice on which he might have been convicted of the offence of stealing. This would have been the case if stealing was an alternative charge to burglary: R v Carroll (supra) at [11] per Gleeson CJ and Hayne J. However, stealing was not an alternative to burglary.

27 Further, extrapolating from the dicta in O'Halloran,if the conviction for the burglary offence had been a general determination on the prosecution notice the appellant may well have had a defence under the first limb of s 17. A conviction on a prosecution notice as distinct from a conviction upon a prosecution notice of an offence is necessarily a general determination which disposes of all matters relating to that prosecution notice. If the decision of the Magistrate however, disposes only of one offence on the prosecution notice, as it did in this case, and the other offence or offences on the prosecution notice are neither laid as alternatives nor are statutory alternatives to the offence upon which a determination has already been given the determination is partial. It is not a determination upon the prosecution notice but only upon something included in it and less than the whole of it: O'Halloran v O'Byrne (supra) at 52 per Wickham J.

28 As to the second limb of s 17, one interpretation of it is that if an accused has been convicted of an offence (in this case, the burglary offence) of which he might have been convicted on the prosecution notice on which he was charged with the current offence (in this case, the stealing offence) he has a good defence under this limb. However this would be an absurd result. It would mean that if two offences are joined in the one prosecution notice because they were part of a series of offences and the accused is convicted of one he or she has a good defence

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to the second. Given the statutory principles providing for joinder of offences which are not necessarily alternatives, or even connected, this could not have been the intention of the Parliament and such an interpretation may result in a miscarriage of justice.

29 In interpreting s 17 I should prefer a construction that promotes the purpose or object underlying the written law rather than one which would not: Interpretation Act 1984 (WA), s18. There is a construction that promotes the intention of the Parliament and avoids this absurd result. That is if the phrase "of which he might be convicted" is construed as referring to the point in time when the plea in bar is made. Thus the charge that the accused has already been convicted or acquitted of must be an offence open on the prosecution notice as it stands at the time the plea is made. If the accused might not be convicted of a jointly charged offence at that time because it has already been dealt with then it will not provide a defence under the second limb of s 17. However, the second limb of s 17 will provide a defence where the accused has been convicted or acquitted of an offence which is an alternative offence to the current offence and "he might be convicted" of it upon the current prosecution notice. This construction is consistent with the wording of the first limb of s 17. It is also consistent with the Full Court in O’Halloran’scase and Gleeson CJ and Hayne J in R v Carroll (supra) at [11] where their Honours speak of a second indictment being preferred against an accused.

30 If s 17 is construed in this manner, the first limb of s 17 logically takes into account double jeopardy issues that arise from a conviction or acquittal on a charge in an indictment or prosecution notice containing the charge upon which the accused has already been convicted or acquitted as well as the current charge. It also takes into account such issues arising from a previous conviction or acquittal of a charge if the current charge is an alternative to it, whether or not the charges are contained in the one indictment or prosecution notice.

31 Whereas, the second limb addresses double jeopardy issues where an accused has been previously convicted or acquitted of an offence of which he might be convicted upon a prosecution notice on which he is currently charged. That is where the former offence is an alternative charge to the current offence.

32 Applying this construction to the facts of this case, the second limb does not apply because at the time the appellant made his plea he might not have been convicted of the burglary offence on the prosecution notice because he had already been convicted of it and it was not an alternative

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offence to the stealing offence. As I have previously stated, the first limb would have applied so as to provide a defence if the conviction for burglary had been a general determination of the prosecution notice, but it clearly was not. The stealing offence was not charged as an alternative to the burglary offence and neither was it a statutory alternative to burglary. The Magistrate took the plea to the burglary offence. No plea was taken at that time to the stealing offence. This was not because the respondent had accepted the plea to the burglary offence in satisfaction of the prosecution notice but because the appellant wished to make submissions on it before he pleaded to that charge. The stealing charge was adjourned to another date. The appellant failed to show that he had been tried and convicted upon a prosecution notice on which he might have been convicted of the stealing offence. The conviction for the burglary offence on the prosecution notice was a partial verdict only upon that prosecution notice.

33 The power contained in the Criminal Procedure (Summary) Act, s 46 (repealed) or the Criminal Procedure Act, s 132(4) to amend a charge did not make a conviction on the stealing offence an alternative offence to the burglary offence for the purpose of s 17. The fact that, hypothetically, the Magistrate had the power to amend the burglary offence to the stealing offence, which power was never employed, does not result in a defence that the appellant has already been tried and convicted or acquitted upon a prosecution notice on which he might have been convicted of the stealing offence.

34 Finally it should be noted that s 17 does not provide a defence to a later charge simply because the facts relating to it were included in the facts of an earlier charge or because the facts of an earlier charge are included in the facts of the present charge. Rather, it provides a defence where, generally speaking, an accused is dealt with in respect to two offences where one is, at law, an alternative to the other. So much is clear from R v Carroll (supra) at 641 per Gleeson CJ and Hayne J at 656 per Gaudron and Gummow JJ O'Halloran's case.

35 I have come to these views based on the wording of s 17 and the authorities which have construed it. It is clear from Pearce v The Queen (supra), a decision of the High Court on the law of double jeopardy in New South Wales, and R v Carroll (supra) at 656, per Gaudron and Gummow JJ and 677 per McHugh J, that s 17 does not simply reflect the modern common law principles of double jeopardy. However, as Wickham J said in O'Halloran v O'Byrne (supra) at 53 in respect to s 17:

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"The controversy about double jeopardy, punctuated in English law by the Constitutions of Clarendon and the fall of an Archbishop to the sword of the assassin, has ebbed and flowed at least since the time of Demosthenes. For Western Australia the Parliament has spoken and to the extent mentioned the debate has, for better or for worse, ended."

36 Thus, the Magistrate was correct in holding that the Criminal Code, s 17 did not provide the appellant with a defence to the stealing offence.

37 Finally, I note that after the plea of guilty was entered by the appellant, the Magistrate proceeded to convict him and fine him $150. The respondent conceded on appeal that the Magistrate probably should have applied the Sentencing Act, s 11 and imposed no penalty in respect to the stealing offence. However, no appeal has been lodged against sentence and when the appellant's counsel was asked whether he wished to amend the appeal notice to include a ground of appeal relating to sentence he indicated that without instructions to do so he would not apply for such an amendment. Consequently I will not determine whether the respondent's concession was correct. The appeal must be dismissed.